January 2012 Archives

Common Law Marriage in Mississippi

January 18, 2012,

Most people may be familiar with the term "common law marriage." Common law marriage was recognized in Mississippi up until 1956. To establish a common law marriage, a man and woman would live together, share property, and generally consider themselves husband and wife. The policy regarding common law marriage was changed by statute, and Mississippi law now requires a valid license for all marriages.

Since common law marriage is no longer recognized in Mississippi, issues may arise when a couple has lived together without the benefit of marriage and then decide to go their separate ways. Such issues may include division of property or the award of child custody. Other problems may arise if either the man or woman dies without a valid will. The survivor may have difficulty proving that he or she was intended to inherit from the deceased partner in the relationship.

The custody and support of children born to unmarried couples is routinely addressed by Chancery courts in Mississippi. However, the law in Mississippi has, until recently, been fairly clear that common law marriages will not be recognized and that upon a separation between an unmarried couple, there could be no legal division of assets accumulated during the relationship. In Davis v. Davis, 643 So. 2d 931 (Miss. 1995), for example, the Mississippi Supreme Court held that where a man and woman had lived together for thirteen years without being married, the woman was not entitled to share in the assets accumulated by her companion during their relationship.

In contrast, the Court of Appeals recently held in Cotton v. Cotton, 44 So. 3d 371 (Miss. Ct. App. 2010), that a woman was entitled to her fair share of the assets accumulated during a marriage which was deemed by the court to be invalid (she failed to obtain a divorce from her first husband before marrying her second husband). In Cotton, the Court of Appeals upheld the chancellor's decision to award distribution of the couple's property between the man and woman as if they had been legally married. Ordinarily, unmarried persons would not be entitled to the benefits of marriage where there is not a valid marriage, including the distribution of property in the event of a split-up.

Cotton is distinguishable from Davis because the Court in Cotton acknowledged that although a couple is not married, when they live together and both contribute to the accumulation of personal property or real property, a party having no legal title to the property does gain rights to their fair share of the property. However, the remedy of equitable distribution is only available where the couples presented themselves as a married couple and acquired property through their joint efforts.

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Grandparent Visitation Rights in Mississippi

January 18, 2012,

If you have a family member who has gone through a divorce or a custody dispute, you know that these types of cases can affect more than just the two individuals in the relationship. When children are involved in a divorce or custody matter in Mississippi, a realm of issues may arise. As a parent of one of the parties involved in this type of case, you may be wondering what rights you have to maintain your relationship with your grandchildren. The goal of the courts in addressing issues related to children is to provide for the best interest of each child. In Mississippi, grandparent visitation can be awarded by any court that has the authority to decide child custody matters. Most commonly, child custody matters are decided in Chancery courts.

Have you recently been denied access to visit with your grandchildren? If so, there may be a solution. There are several situations in Mississippi where grandparents may seek visitation. For example, if your child did not receive custody of his/her children or if your child's parental rights have been terminated, you may seek visitation with your grandchildren in the court that issued the divorce or custody decree. On the other hand, if your child has died, leaving your grandchildren in the custody of the other parent or another relative, you may seek visitation in the county where your grandchild lives.

If the previous situations do not apply to you, there still may be a chance to gain grandparent visitation rights. You may seek rights to visitation in chancery court. In this situation, you will be required to show that you have a "viable relationship" with your grandchild and that you are being unreasonably denied access to visit with your grandchild. In this situation, a viable relationship means that you have supported your grandchild financially in whole or in part for at least six (6) months prior to seeking grandparent visitation and that you have had frequent visitation with your grandchild, including occasional overnight visits, for a period of at least one (1) year prior to seeking visitation rights. You will also be required to show that your visitation with your grandchildren will be in their best interest. Judges want to provide a chance to maintain preexisting relationships between children and their grandparents as long as the relationship will benefit the children and not cause too much conflict among families.

To recap, grandparent visitation may be awarded in the following scenarios:

1. Your child has either not been granted custody of their child or their parental rights have been terminated (Type 1 visitation);
2. Your child is deceased (Type 1 visitation); or,
3. You previously have had a viable relationship with your grandchildren and your visitation with the children would be in your grandchild's best interest (Type 2 visitation).

Source: Miss. Code Ann. ยง93-16-3.

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Sibling Custody: Stay Together or Separate?

January 18, 2012,

Custody disputes in Misssippi are never easy. Two parents are put into the untenable position of being forced to battle against each other for the right to keep and care for a child that earlier belonged to both of them. These disputes are complicated even further when, instead of just one child being at issue, there are two, three, or more brothers and sisters whose well-being are at stake. Suddenly, the court may be forced to consider whether siblings should go to one parent or be divided between the parents.

The Mississippi Supreme Court has reiterated time and time again that, in custody disputes involving multiple children, courts should strive to keep the family unit together. But the custody analysis does not change in multiple-child households. In every child custody dispute in Mississippi - even those involving more than one child - the court will follow the guidepost that custody should be awarded to the parent best able to serve the "best interests and welfare of the child."

In making this "best interest" determination, Mississippi courts have consistently and explicitly used what are called the Albright factors, so named after the 1983 case in which they were first outlined. These factors are discussed in more detail in the custody section of my blog. Even in multiple-child custody disputes, Mississippi courts still will use these factors in determining which parent will best fulfill the "best interests" of the children. So a key question necessarily comes up when siblings are involved: Is it in the "best interests" of siblings that they stay together in a custody determination?

The answer to this question is simple: It depends. Mississippi courts generally try to keep siblings together, but the decision hinges on the facts and circumstances of each case. The Mississippi Supreme Court has said time and time again that when circumstances do not require the separation of children, the courts should make a strong attempt to keep the siblings together. The Supreme Court has also said that siblings may be separated if circumstances dictate that division of the siblings is in their best interest. So the courts' determination of keeping siblings together or splitting them up depends primarily on the facts of the case.

In fact, Mississippi courts have also said that there is no general rule that it is in the best interests of the siblings to remain together. (Conversely, the Supreme Court has held that there is no general rule that it is in the best interests of the siblings to separate.) That is to say, one should not even presume that siblings automatically will be kept together in a custody dispute. While courts will try to keep the siblings together, circumstances may exist that make keeping siblings together not in the "best interests" of the children.

For example, in one case the court separated siblings partially because the thirteen-year-old older brother expressed a strong desire to live with his father. Another case found the court separating siblings only after determining that both father and mother were fit to raise children. In another case the court had no trouble separating half-siblings.

It must be noted, however, that courts have been less reluctant to separate the siblings when the custody arrangements are favorable in terms of maintaining a familial bond. For instance, if siblings are split between the parents, but the terms of custody stipulate that the siblings see each other every weekend and at all holidays, Mississippi courts have been less reluctant to separate the siblings. If the separated siblings will attend the same school, the courts have been more willing to acquiesce. Basically, if the negative effects of separation can be mitigated as much as possible, the court will take that into account when making the determination.

To conclude, while there is technically no presumption that keeping siblings together or splitting them up is in the siblings' best interests, it seems that Mississippi courts will more often than not lean towards keeping siblings together. But at the end of the day, sibling custody depends on the circumstances of each case, just like any custody determination.

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